New Delhi: The Supreme Court on Tuesday asked that since some of the sub-castes in the Backward Classes have done better and have "become forward", shouldn't they compete in the general category?
The court made the observations as it commenced the hearing on the permissibility of sub-classification within SC-ST reservation as it examined whether state governments were empowered to make such sub-classifications for reservation in admissions and public jobs. The apex court pointed out that children of an SC or ST IAS, IPS officer do not suffer from disadvantages, which are usually faced by persons of the same category residing in villages.
A seven-judge constitution bench led by Chief Justice DY Chandrachud is also examining the validity of the Punjab Scheduled Castes and Backward Classes (Reservation in Services) Act, 2006 which provided 50% quota and the first preference’ to ‘Valmikis’ and ‘Mazhabi Sikhs’ castes in public jobs inside the quota meant for the SCs. The bench, also comprising Justices BR Gavai, Vikram Nath, Bela M Trivedi, Pankaj Mithal, Manoj Misra and Satish Chandra Mishra, is hearing close to two dozen petitions, led by the Punjab Government against the 2010 verdict of the Punjab and Haryana High Court.
Advocate General (AG) of Punjab Gurminder Singh submitted that reservation is no benevolence and it is compensation for the centuries of suppression of the needy. Singh said nothing would correct itself on its own and the only way to provide succour to the needy is affirmative action for them. Singh said there have to be provisions enacted in law to achieve this status of equality and opportunity with dignity, and stressed this would eradicate backwardness.
The bench asked Singh that according to the state amongst a particular (backward) category, some of the sub-castes have done better. "They are forward in that category. They should come out and compete in general, why stay there? Let the remaining who are still backwards within the backward, let them have the reservation?.... That is the concept of reservation, they (forward in the category) should move out…" the bench observed.
The AG said: "That is the aim and if the aim is achieved then the purpose for which the exercise was taken should come to an end". To this Justice Nath orally observed: “Aim is actually according to you, for a certain sub-caste in that particular category…They have achieved, they should come out and the remaining should get that benefit."
Justice Gavai told the AG that his argument "happens to be that amongst the backward there are more backwards, therefore they require more special treatment than the backwards". The Punjab AG agreed and added, “What justice Nath is suggesting is the ultimate”.
The CJI said your argument is two levelled: one is the equality argument and the other is a federal argument. “Equality argument postulates that it is open for the state to classify within the SC by identifying those who are really within the state of relative marginalization. That is the substantive equality argument and if you can do that between the general community and the backward caste, why you cannot apply the same principle there?” noted the bench.
The bench said the federal argument is that every state within the nation is conversant with the caste and communities which are prevalent on its territory and therefore, what Parliament has done is to designate caste and tribes for the entirety of the nation but that does not take away the power of the state within its own territory that these are communities in the state who are particularly marginalized and need special attention. Punjab counsel agreed with the bench’s observation.
The CJI observed that there is nothing in the constitutional structure which prevents the state from doing that because it owes responsibility to the people. “You must have done some exercise to identify backwards within the backward….what are the parameters of considerations you have taken into identifying”, Justice Nath asked the AG.
Singh said they continue to be backward and despite what they are, they are not adequately represented in services under the state. “Are they really backward within the backward and whether they are backward within the backward or not so backward, or forward backward….they are still not represented so there is something lacking in the matter of policy and that is what state seeks to address”, said the AG.
CJI Chandrachud said: "We have some population data, what is the total population of SCs in Punjab and what is the population of Valmikis and Mazhabhi Sikhs within that group? In states like Punjab and Haryana, there is no ST population."
Singh said the president issues an order saying these 26 castes are entitled to be in the room for the purpose of benefits which SCs are entitled and after that, “the power is taken away from the president and vests totally in the Parliament that whether those castes are entitled, which are inside the category…. are they entitled to stay (in that category) or not”.
Justice Gavai said, “within a particular backward class certain caste has reached that position and they are on par, as justice Nath pointed out that they should move out then that is only for the Parliament. We are deciding an important issue….now what happens if a person from SC or ST, gets into IAS or IPS…..his children won’t suffer the disadvantages of that category of persons residing in villages but then by virtue of reservation….”.
Singh said who enters or exits the room is the prerogative of the president followed by the Parliament but those who are within the room, it is for the state to decide. The CJI queried, can a state government say we are giving 100% reservation out of the SC only to these two communities. Singh said “no, because then you are excluding without legislating…”.
During the day-long hearing, the bench said the state is bound by the 50% reservation cap (Indra Sawhney v Union of India judgment in 1992), while distributing benefits within the 50%, is the state truly bound by it and can the state not say that these communities are really marginalized communities and benefits should to go them? “I am not breaching the cap so far general communities are concerned… Maharashtra, Tamil Nadu may say there are not two but seven in my states……can the state do that, why can’t the state do it?”, asked the bench.
The CJI told Singh there is an element of exclusion let us not gloss over it and the point is this, the same exclusion applies to reservation per say, posts are reserved for the backward community there necessarily is exclusion of the forward community in competing for those posts, yet our constitutional jurisprudence permits it why because we treat equality as substantive equality and not formal equality.
Citing N M Thomas's judgment, the CJI said we have developed jurisprudence to the effect that reservation is not breach of equality but in aid of equality. “Interestingly, the same argument for the reservation which applies for the backward community…backward vs forward would also apply within the backward community”, said the CJI.
The bench observed, “because what the Punjab legislature brought about was this within the reservation of seats for the Scheduled Caste was 15.5%, which falls within the overall 50% cap. 50% of the 15.5% reserved for the Mazhabhi Sikhs….so reservation is exclusively carved out for them. The other backward caste cannot compete for those posts…In a sense, it is in the sense exclusionary, we cannot gloss over the point”.
The CJI said the only question is this, can that exclusion not be justified on the same yardstick that we have applied exclusion in the backward vs forward context, within the backward community, within the Scheduled Caste is there anything in the constitutional jurisprudence which restrains the state from saying that I am not deleting a community from the list of SC, which has been designated by the president under Article 341, 342. “But within those communities I am making a classification that certain communities are more backward and therefore greater need for protection on the same touchstone of substantive equality”, noted the bench.
A counsel, representing a petitioner, said the requirement of efficiency in administration of government requires and mandates sub classification and in matters of reservation this court has followed one the cautious approach where the courts ensure that reservation is not misused.
The CJI said: “it how you define efficiency, if you define efficiency in an inclusive sense by the inclusion of people who have been excluded from governance then it promotes efficiency. Also, putting people from marginalized communities in important positions of responsibility itself is receptive to the needs of those communities and need for inclusion ... .therefore, it is not something which detracts from efficiency”. “Because the postulate of the Constitution is not that people who belong to the marginalized groups are inefficient and those who belong to other groups are efficient….”, said the CJI. The apex court will continue to hear the arguments on Wednesday.
The high court had struck down Section 4(5) of the Punjab law, which gave 50% quota to ‘Valmikis’ and ‘Mazhabi Sikhs’, as unconstitutional on grounds, including that the provision violated a five-judge constitution bench judgment of 2004 of the Supreme Court in the case of EV Chinnaiah vs. State of Andhra Pradesh.
The Chinnaiah judgement had held that any ‘sub-classification’ of the Scheduled Castes would violate Article 14 (right to equality) of the Constitution. In 2011, the Punjab government moved the apex court. In August 2020, a five-judge bench headed by Justice Arun Mishra (since retired), differed with the Chinnaiah judgment and referred it for adjudication by a larger bench of seven judges.
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